Talaimaitoga v The State [1990] FJHC 2; Haa0040j.89s (2 January 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 40 OF 1989

Between:

JONE TALAIMAITOGA
PENIASI NAIKATINI
SAMUELA WAQABACA
Appellants

v.

STATE
Respondent

Appellants in Person
Mr. S. Seneratne for the Respondent

JUDGMENT

This is an appeal against a sentence of 5 years imprisonment imposed by the resident magistrate, Nausori Magistrate Court after he convicted the appellants for an offence of Rape.

The appellants appeared before the learned trial magistrate jointly charged with an offence of Rape and were convicted on their guilty pleas.

The facts of the case as outlined by the police prosecutor tells of how the complainant who was returning home late at night after attending a church service was set upon by an acquaintance who dragged her to a nearby vacant house where she was confined in a room for some time and during which each of the accused and the acquaintance took turns raping her before she was finally released.

In the course of being raped the complainant was threatened and assaulted. Her medical report which was tendered in the Magistrate Court confirms several injuries and her complaint of having been the victim of a 'gangbang' to use a crude expression commonly applied to cases of this sort.

The learned trial magistrate in sentencing the appellants considered the sentencing guidelines laid down by the learned Chief Justice and properly exercised his sentencing powers to the full.

It is true the appellant's were all young first offenders. At the time of committing this offence they were in their early twenties. It is also true that they had all pleaded guilty to the offence and as correctly pointed out in the 1st appellant's written submissions such a plea "...... carries a lot of weight and is always a strong mitigating factor as it stopped the complainant from (having to) appear personally in the stand".

In respect of this latter feature both the 1st and 2nd appellant's complain that the learned trial magistrate neither mentioned their guilty pleas nor did he appear to have taken it into account. In this complaint they are correct when considering the sentencing powers of the learned trial magistrate.

But the sentencing powers of this court are not limited to a maximum of 5 years for a conviction of Rape and I had seriously considered increasing the appellants' sentences to the "minimum starting point" laid down by the learned Chief Justice when he said:

"Where a rape is committed by two or more men acting together ........... or by a person who abducts the victim and holds her captive, the starting point should be eight years."

Additionally, the learned Chief Justice said:

"The fact that the victim may be considered to have exposed herself to danger by acting imprudently is not a mitigating factor; and the victim's previous sexual experience is equally irrelevant."

This latter passage is repeated for the benefit of the 1st and 2nd appellants who in their written submissions sought to tarnish the complainant's reputation by reference to her past unproven sexual experience. Clearly any previous sexual experience a rape victim may have had is totally irrelevant to the culpability of her assailant and cannot ever be a mitigating factor.

Having considered the nature of the appellants' complaints in this appeal I have decided in all the circumstances to leave their sentences undisturbed.

The appeals are accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
1st February, 1990.

HAA0040J.89S